Most people picture closing argument as a simple back-and-forth: the State argues, the defense argues, and that’s it. In Indiana, it’s actually more structured than that — and understanding the structure is what lets a defense attorney occasionally claw back the very thing the rule seems designed to deny the defense: the last word.
How Closing Argument Is Ordered in Indiana
Under Indiana Jury Rule 27, the party with the burden of going forward opens and closes final argument. In a criminal case, that’s always the prosecution — never the defense. The order plays out like this:
- The prosecution opens. The rule requires the prosecution to “disclose in the opening all the points relied on in the case.” This isn’t optional — it’s supposed to be a full presentation of the State’s theory, not a placeholder that saves the real argument for later.
- The defense argues. This is the defense’s one guaranteed opportunity to address the jury.
- The prosecution closes — meaning the State gets a second turn, typically called rebuttal.
The same structure is written into Indiana Code 35-37-2-2(4), which tracks Jury Rule 27 almost word for word. Under the statute, if the defense declines to argue after the prosecution’s opening, that opening is the only argument allowed in the case — so the defense’s decision to argue at all is also a strategic choice with consequences built into the rule.
The Sur-Rebuttal Provision: The Rule’s Built-In Fairness Valve
Here’s the part of Jury Rule 27 that matters most for the defense: “If, in the closing, the party which closes refers to any new point or fact not disclosed in the opening, the adverse party has the right to reply to the new point or fact. The adverse party’s reply then closes the argument in the case.”
In plain terms: if the prosecutor’s rebuttal isn’t just rebuttal — if it raises a genuinely new point or fact that wasn’t part of the State’s opening argument — the defense gets to respond to that specific new point. And critically, the defense’s reply then closes the argument. The defense, not the State, gets the actual last word the jury hears before deliberating.
This provision exists because the rule’s basic structure already gives the State two bites at the apple (opening and closing) against the defense’s one. Without the sur-rebuttal right, the State could reserve its most important arguments for rebuttal, when the defense has no ability to respond at all. The sur-rebuttal rule is the check on that imbalance — it forces the prosecution to actually disclose its theory upfront, on penalty of handing the defense a final word if it doesn’t.
What Counts as a “New Point or Fact”
This is where the rule gets contested, and where the outcome usually depends on exactly what happened during argument. The Indiana Supreme Court addressed this directly in Goodman v. State, 588 N.E.2d 507 (Ind. 1992). In that case, the defendant’s own closing argument raised voluntary manslaughter — arguing the killing happened “in the heat of passion” and that Goodman had “lost control.” The prosecutor’s rebuttal then addressed the elements of voluntary manslaughter in detail. The defendant argued this was a new point entitling him to a sur-rebuttal.
The Indiana Supreme Court disagreed. Because the defense itself had introduced voluntary manslaughter into the argument, the prosecutor’s response on that same issue wasn’t a “new point or fact” under the statute — it was simply a response to something the defense had already raised. The court’s broader principle: if defense counsel opens the door to a topic during its own closing, the State’s rebuttal on that same topic doesn’t trigger sur-rebuttal rights, because the defense — not the prosecutor’s opening — introduced it.
The lesson cuts both ways. A skilled defense attorney can use this rule offensively, but only by being deliberate about what the prosecution’s opening actually covered — and careful about what the defense’s own closing opens up.
How a Skilled Defense Attorney Uses This Rule
Getting a sur-rebuttal isn’t about luck — it’s about listening closely and building the record in real time.
- Track the State’s opening argument point by point. Before the prosecutor even finishes, defense counsel should be building a mental (or literal, written) list of every point, theory, and factual claim the State actually made. This list becomes the yardstick for everything the State says in rebuttal.
- Listen for anything genuinely new in rebuttal. If the prosecutor introduces a fact, argument, or theory in rebuttal that wasn’t part of that list — a new characterization of the evidence, a new theory of intent, a point about a witness that wasn’t raised the first time — that’s the opening for a sur-rebuttal request.
- Avoid opening doors unnecessarily in your own closing. As Goodman illustrates, raising an issue yourself can immunize the State’s response to that same issue from being treated as “new.” A defense closing should be built with an eye toward not accidentally forfeiting sur-rebuttal rights on points the defense would rather address after hearing the State’s rebuttal.
- Object and ask for the record before the jury is instructed. If the prosecutor’s rebuttal crosses into new territory, the request for a reply needs to be made clearly, on the record, before argument concludes — not raised for the first time on appeal. Appellate review of this issue depends heavily on what was preserved at trial.
- Use the reply to actually close, not just respond. Because a granted sur-rebuttal closes the argument in the case, it is the defense’s real last word — the final thing the jury hears before instructions and deliberation. That’s a meaningful advantage in a rule that otherwise guarantees the State the last word. A sur-rebuttal should be treated as valuable, focused argument time — not a rushed afterthought.
Why This Matters
Closing argument order can feel like a technicality until the moment it isn’t. The prosecution knows it gets the last word by default, and it is common for the State’s rebuttal to save its most pointed arguments for that final turn — precisely when the defense would otherwise have no way to respond. Jury Rule 27’s sur-rebuttal provision is the one mechanism that can flip that dynamic, but only for a defense attorney who is tracking the State’s opening closely enough to recognize, in real time, when the rebuttal has actually stepped outside it.
This post is for general information and does not constitute legal advice. If you have questions about trial procedure in your case, contact our office to discuss your specific situation.